Gitmo Detainees Have Habeus Rights

Ken AshfordConstitution, Supreme Court, War on Terrorism/TortureLeave a Comment

OK.  Permit me to get all law geeky, but this is big legal news.  Well, it’s big news for anyone who believes in our Constitution, really.  Aned a big blow to the Bush Administration.

About an hour ago, the Supreme Court ruled that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention.

What does that mean?

A habeus petition is an extraordinary (meaning "out-of-the-ordinary", rather than "wow-gee-willikers") process by which people incarcerated can challenge their incarceration in court.  This usually happens after all trials and appeals have failed.  It’s really thought of as the "last resort" for justice — the last bite at the apple.  The writ of habeus corpus is old — older than the Constitution.  It’s one of the few rights that is in the original Constitution, rather than the Bill of Rights (the amendments) tacked on afterward — that’s how important the framers thought it was.

Now, according to the Constitution, the habeus writ cannot be suspended except "in Cases of Rebellion or Invasion the public safety may require it." [U.S. Constitution, Art. I, Sec. 9, Clause 2]. 

Lincoln suspended the writ during the Civil War. 

Sadly, it was also suspended in 1941, when Japanese-Americans were denied the ability to challenge their internment during WWII.

Okay, so what happened here?

Well, 9/11.  We went to war.  We rounded up a bunch of "enemy combatents".  Well, not really — most of those held at Gitmo were captured by the Pakistani government or the Northern Alliance, so we don’t really know if they were "enemy combatents" or not.  [UPDATE:  In fact, according to the NYT:

The man who gave the case its title, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosnia in the 1990’s and were legal residents there. They were arrested by Bosnian police within weeks of the Sept. 11 attacks on suspicion of plotting to attack the United States embassy in Sarajevo — “plucked from their homes, from their wives and children,” as their lawyer, Seth P. Waxman, a former solicitor general put it in the argument before the justices on Dec. 5.

So this guy is an "enemy combatent" in our War on Terror?  Maybe.  Maybe not.  But we should try and convict him before we detain him for 6 years, right?]

But hundreds languished at Gitmo, without trial, without being charged.  Over time, our government quietly transferred hundreds of them back to their home countries, most of them for release.  ("Oops, our bad")

But hundreds remained, and still remain, at Gitmo.

The Bush Administration and the republican-controlled Congress has tried to pass laws suspending the writ to these guys.  Over the past few years (and for reasons I won’t get into), the Supreme Court has struck those attempts down.

The latest case essentially stems from the argument (made by the Bush Administration) that the detainees do not have a constitutional right to the writ of habeus corpus, because they are being held at Gitmo, which is not U.S. sovereign territory.  (Under prior cases, it would be clear that if the foreign nationals were detained within the contiinental United States, they would have rights to habeus relief). 

So today, the majority of justices (in a 5-4 decision, with Kennedy being the swing) didn’t buy that; They recognized that the U.S. was trying to get around the habeus requirement by having these guys held in some place other than in U.S. territory:

"The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain."

In other words, because the Government chose to detain these prisoners at Gitmo for the very purpose of avoiding a judicial check on the legality of the detentions, the Court has ensured that the constitutional guarantee extends to the naval base.

Bottom line: these detainees who have been held for as long as six years without trial, without being charged, will get their day in court.

As it should be.

[Law geeks can read the opinion here.  Read Scalia’s dissent — he sounds like Jack Nicholson in A Few Good Men ("All you’ve down is risked lives today"), but Souter’s concurrence in rebuttal takes care of Scalia.  Good reading]


“…it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.”

Yeah.  It would be easier for our government if they could just imprison people without having to, you know, prove guilt.  But I don’t think that’s what our forefathers, and the soldiers who gave their lives afterwards, envisioned and gave the full measure of their lives to protect.  This isn’t some banana republic, Scalia.

UPDATE: From the Center for Constitutional Rights, which represented defendants in these cases:

"The Supreme Court has finally brought an end to one of our nation’s most egregious injustices,” said CCR Executive Director Vincent Warren. “It has finally given the men held at Guantánamo the justice that they have long deserved. By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding. This six-year-long nightmare is a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive."


LAST UPDATE, I PROMISE:  For those of you who are ambivalent or reject the Court’s decision today, I ask you to consider this, from Glenn Greenwald:

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.  In ruling that the CSRT’s woefully fail to provide those safeguards, the Court quoted Alexander Hamilton’s Federalist No. 84: "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." It is that deeply tyrannical practice — implemented by the Bush administration and authorized by a bipartisan act of Congress — which the U.S. Supreme Court, today, struck down.


The greatest victim of the 9/11 attack — by far — has been our core, defining constitutional liberties. Of all the powers seized by this administration in the name of keeping us Safe, the power to imprison people indefinitely with no charges and no real process is the most pernicious.

Any disagreements with that?